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OC?. 1.20)1 6:5'PM BICKERTON 'l~~ Ho`ontalu Hawaii's Testimony Regarding Bill No. 167 October 1, 2007 Page ? of 4 formats that have similar negative impacts on the community. We submit that it is t c.i~,~? constitutionally defensible approach to pass the Proposed Ordinance and to consid:-~ htiona. legislation as warranted. 2. The Proposed Ordinapce and Commercial Development of Hawaiian hI, Lanc.:~ Opponents of the Proposed Ordinance have asserted that the Proposed Ordinance ineffective because it cannot block the construction or operation of "superstores" cn rar,;iiar home lands. We submit that this is incorrect for two reazons. First; the Cotmty can only regulate those acfivities it has legal power to regulate. li determined by a court of law that reasonable commercial zoning laws that have be ~a 1~7pt~d ~y Hawaii County do not apply to commercial developments on Hawaiian home land. 3 tll e Proposed Ordinance will simply have the same territorial effect of every other Ha« ounty zoning law, This is not a. bad thing and it will substantially serve the interests of the rnmuni e~- by protecting it lzom the deleterious impact of "superstores" on all lands in the Co.u ottie r t .ur, Hawaiian home lauds. Second, we submit that t1re County cam reasonably regulate commercial develonm~tn ~r. Hawaiian home lands. This is true despite the oR-repeated legal conclusion that tl. e ;mt~ c; .r impose no regulation on ~:ommercial developments on Hawaiian home lands. Thus, sut m:.: that the Proposed Ordinance will most certainly apply to Hawaiian home lands with; he Coe rat} and prevent companies from circumventing County regulation by steking favorable mere al development arrangements on Hawauan home lands. Under the Hawaiian Homes Commission Act (the "13HCA"), a tease ofHawaiian h, ~ Lardy to a non-native Hawaiian entity for commercial purposes must be consistent with Cour- zoni a~ ordinances. Whereas Hawauan home laztds that are required foz leasing under H1IC. .~ceion 207(a) -that is, lands which are used for the purpose of enabling native Hawaiian; n ,~e and work on their own land -are completely exempt from County zoning, Hawaiian hon Lindy [h;s! are nor, required for ]easing under HHCA section 207(x) - such as lands to be leased ~ ioa native Hawaiians for conHnercial purposes -may be disposed of "on the same tern:e rditic . restrictions and uses applicable to the disposition of public lands in chapter 171, Hit i R~~vis'~~i Statutes." HHCA § 204(x)(2). Under Hawaii Revised Statutes section 171-41, leases of public lands for commerci es tcu, be consistent with County zoning laws. Specifically, "[l]eases for commercial u ;1ai11 h ; made only pursuant to a development plan which provides for careful placement c:' complementary enterprisesconststentwtthcountyzoningrequirements[.]" HRS § 1 ~41;a1 (emphasis added). We submit that the only reasonable interpretation of this languag that m n- native Hawaiian commercial developments must be done consistent with county zuu requirements. We think it is also important to note that our conclusion is not controversial. In fact; [Hl., h•~, itself conceded that commercial developments on Hawaiian home lands are subjec~.? 'arrt~. 61CKERTON ¦ LEE ¦ DANG ¦ SULLIVAN ..,nnm,,.mnn xnw ,nn*xtumv Tope P,nngclal Gen,er, Fnrr Srreer Tower • 745 Forr Strear. Suire SOi • Ilanolnlu, Hawaii 9E8I s Phaae, 808.5993811 Faz; 808.533.246% Web: www,BSDS.rnm